Citation Nr: 0530948
Decision Date: 11/17/05 Archive Date: 11/30/05
DOCKET NO. 03-17 925A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an initial compensable rating for patello-
femoral syndrome of the right knee.
2. Entitlement to an initial compensable rating for patello-
femoral syndrome of the left knee.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Ronald W. Scholz, Senior Counsel
INTRODUCTION
The veteran served on active duty from June 1965 to April
1971 and from July 1972 to October 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina which determined that the veteran
had failed to submit new and material evidence to reopen his
claim for service connection for bilateral knee disabilities.
A May 1998 Board Remand noted that the RO had not made a
final determination with respect to the veteran's claim for
service connection for a left knee disability prior to its
February 1997 rating decision.
In July 1998, the RO denied the claim for service connection
for a left knee disability on the basis that it was not well
grounded.
In April 1999, the veteran appeared before a Veterans Law
Judge at a travel board hearing held at the RO in Columbia,
South Carolina.
A September 1999 Board decision found the claim for service
connection for a left knee disability to be well grounded,
and that new and material evidence sufficient to open and
well ground a claim for service connection for a right knee
disability had been submitted. The claim for service
connection for a right knee disability was ordered reopened
and the claims for service connection for the right and left
knee disabilities were remanded to the RO for further
development.
In November 2002, the RO granted service connection for
patello-femoral syndrome of the left and right knees, rating
both as noncompensable (0 percent).
In January 2003, the veteran filed a notice of disagreement
with the noncompensable ratings assigned for the left and
right knee disabilities. A statement of the case was issued
in May 2003, and a timely appeal was received in June 2003.
In July 2005, the veteran appeared before the undersigned at
a travel board hearing held at the RO in Columbia, South
Carolina.
FINDING OF FACT
Competent medical evidence of record reflects limitation of
flexion, mild patellofemoral crepitus, positive medial joint
line tenderness, mid lateral joint line arthrosis, and
mechanical pain secondary to degenerative arthritis,
bilaterally, of the knees.
CONCLUSIONS OF LAW
1. The criteria for an initial rating of 10 percent, but no
more, for patello-femoral syndrome of the right knee, have
been met. 38 U.S.C.A. §
38 C.F.R. §
2. The criteria for an initial rating of 10 percent, but no
more, for patello-femoral syndrome of the left knee, have
been met. 38 U.S.C.A. §
38 C.F.R. §
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to initial compensable ratings for patello-
femoral syndrome of the left and right knees
The veteran contends that he has constant pain in both knees,
which worsens with prolonged standing and squatting.
The veteran received VA medical examinations for his
bilateral knee disabilities in October 1997, April 2000,
August 2000, and May 2003.
The October 1997 VA examination report contains the veteran's
reported history of pain in both knees, with a diagnostic
impression upon examination of mild osteoarthritis and mild
patellofemoral syndrome of both knees. Range of motion
testing revealed a modest limitation of extension to 135
degrees, bilaterally.
The April 2000 VA examination report contains the veteran's
reported history of pain in both knees, with a diagnostic
assessment upon examination of mechanical knee pain secondary
to degenerative arthritis, bilaterally. Range of motion
testing revealed a modest limitation of extension to 130
degrees, bilaterally.
The August VA 2000 examination report contains the veteran's
reported history of pain in both knees, with a diagnostic
assessment upon examination of mechanical knee pain secondary
to mild degenerative arthritis, bilaterally. Range of motion
testing revealed extension of the right knee of 130 degrees,
and extension of the left knee of 135 degrees.
A January 2001 addendum to the April 2000 and August 2000
examination reports contains findings of degenerative joint
disease and degenerative arthritis of both knees.
The May 2003 VA examination report contains the veteran's
reported history of pain in both knees, with a diagnostic
assessment upon examination of mild lateral joint arthrosis
of both knees which are minimally limiting in terms of
standing or squatting. Range of motion testing revealed
extension of the right knee of 135 degrees and extension of
the left knee of 130 degrees.
A July 2005 letter from the veteran's private treating
orthopedic physician contains an impression of early
degenerative joint disease of the bilateral knees, with
findings upon examination of medial joint line pain in both
the right and left knees. X-rays showed loss of medial joint
space in both knees. No range of motion testing was
reported.
At his July 2005 travel board hearing, the veteran testified
that his knees were constantly painful and that standing or
walking aggravated the pain.
The RO has rated the veteran's knee disabilities under
38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis, due to
trauma, substantiated by x-ray findings, which is to be rated
under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative
arthritis (hypertrophic or osteoarthritis).
Degenerative arthritis established by x-ray findings is rated
on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint, in this case, the
knee.
Plate II of 38 C.F.R. § 4.71, the schedule of ratings for the
musculoskeletal system, indicates that the normal range of
flexion and extension motion of the knee is 0 to 140 degrees.
The medical evidence of record does not reflect ankylosis or
any limitation of extension, but consistently reflects
limitation of flexion. Under 38 C.F.R. § 4.71a, Diagnostic
Code 5260, a noncompensable (0 percent) rating is warranted
for flexion limited to 60 degrees, and a 10 percent rating is
warranted for flexion limited to 45 degrees. As the
veteran's "worst" limitation of flexion has been reported
as 130 degrees, bilaterally, a noncompensable rating for both
knees is warranted.
However, a rating of 10 percent for each major joint or group
of minor joints affected by limitation of motion may be
assigned when the limitation of motion of the specific joint
or joints involved is noncompensable under the appropriate
diagnostic codes, and limitation of motion is confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic
Code 5003.
With respect to the joints, the factors of disability reside
in reductions of their normal excursions of movements in
different planes. Factors for consideration include less or
more movement than normal, weakened movement, excess
fatigability, incoordination, impaired ability to execute
skilled movements smoothly, pain on movement, swelling,
deformity or atrophy of disuse, instability of station,
disturbance of locomotion, and interference with sitting,
standing, and weight-bearing. For the purpose of rating
disability from arthritis, the knee is considered a major
joint. 38 C.F.R. § 4.45.
Disability of the musculoskeletal system is primarily the
inability to perform the normal working movement of the body
with normal excursion, strength, speed, coordination and
endurance. Functional loss may be due to the absence of part
or all of the necessary bones, joints and muscles or
associated structures, or due to deformity, adhesions,
defective innervation, or other pathology, or it may be due
to pain supported by adequate pathology. 38 C.F.R. § 4.40.
Functional loss due to pain is to be rated at the same level
as functional loss where motion is impeded. DeLuca v. Brown,
8 Vet. App. 129, 139 (1995). Here, the Deluca requirement
to consider functional loss due to pain is reflected in the
application of 38 C.F.R. § 5003, which authorizes a 10
percent rating where the limitation of motion is
noncompensable but there is satisfactory evidence of painful
motion.
As the evidence establishes limitation of motion of both
knees, confirmed by medical evidence of pain, a rating of 10
percent is warranted for the veteran's left and right knee
disabilities.
The Board has considered other potential ratings for the
veteran's knee disabilities, but there is no medical evidence
of ankylosis, recurrent subluxation, lateral instability,
semilunar dislocated cartilage, removal of semilunar
symptomatic cartilage, impairment of the tibia and fibula, or
genu recurvatum and, consequently, no rating under other any
other diagnostic code for either knee is warranted.
The Veterans Claims Assistance Act of 2000 (VCAA)
For the reasons set forth below, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4).
In a May 2003 letter, following two Board remands, the RO
notified the veteran of the information and evidence needed
to substantiate and complete his claim, of what part of that
evidence he was to provide, and what part VA would attempt to
obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b)(1) (2005); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002).
In a May 2004 letter, the RO advised the veteran to send the
RO any additional evidence or information that he thought
would support his claim. Pelegrini v. Principi (Pelegrini
II), 18 Vet. App. 112 (2004).
The original rating decision on appeal was in February 1997,
more than three years prior to the enactment of the VCAA.
Therefore, the veteran did not receive a notice complying
with the requirements of the VCAA prior to the initial rating
decision denying his claims. Nonetheless, the Board finds
that the lack of such a pre-decision notice is not
prejudicial to the veteran. VCAA notice was provided by the
RO prior to the transfer and certification of the veteran's
case to the Board, and the content of the notice fully
complied with the requirements of 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b).
The Board notes that the veteran is represented and has been
provided with every opportunity to submit evidence and
argument in support of his claim and to respond to VA
notices. Moreover, neither the veteran or his representative
has alleged any prejudice with respect to the timing of the
VCAA notification, nor has any been shown. See Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
The VCAA places an enhanced duty on VA to assist claimants in
obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2005).
In this case, the veteran's service medical records are on
file and the RO has obtained all available post-service VA
and private medical records identified by the veteran. 38
U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2),
(3). Moreover, the veteran has been afforded VA medical
examinations in October 1997, April 2000, August 2000, and
May 2003 in connection with his claims.
ORDER
1. Entitlement to an initial rating of 10 percent, but no
more, for patello-femoral syndrome of the right knee is
granted.
2. Entitlement to an initial rating of 10 percent, but no
more, for patello-femoral syndrome of the left knee is
granted.
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CONSTANCE B. TOBIAS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs